Third Circuit Hears Case on NYPD Surveillance of Muslims

When appearing on Democracy Now! to discuss the aftermath of the Charlie Hebdo massacre in Paris, investigative journalist Jeremy Scahill noted that in both the U.S. and France, the surveillance state “unfairly targets Muslims and immigrants.” On Jan. 13, the U.S. Third Circuit Court of Appeals in Philadelphia heard oral arguments on one example of that unfair targeting: the New York Police Department’s suspicionless surveillance of Muslims in the city and elsewhere. A group of New Jersey Muslims who were spied on, including decorated Iraq War veteran Syed Farhaj Hassan, filed a federal civil-rights lawsuit against New York City in 2012. Represented by, the Center for Constitutional Rights (CCR), Muslim Advocates, and Gibbons P.C. (no relation), they are appealing a lower court’s dismissal of it last February.

The NYPD program, begun in 2002, spied on not just mosques and centers of worship, but student groups, places of business owned or frequented by Muslims, and even elementary schools. The plaintiffs filed the suit after it was exposed in a Pulitzer Prize-winning series of Associated Press articles. Before the case could be heard on its merits, however, New Jersey federal District Judge William J. Martini granted New York City’s motion to dismiss it, on the grounds that the plaintiffs suffered no “injury,” because the spying did not cause “harm.” If any harm, at all occurred, the judge said, it was caused by the AP publishing stories about the surveillance.

The Arguments

The oral arguments on Jan. 13 were about whether that dismissal was improper. The tragic events in Paris were not just a mere backdrop or a proverbial elephant in the room. Within the first two minutes, one of the justices interrupted CCR legal director Baher Azmy to ask him, “But what has happened since 9/11 and more importantly, in Paris the other day, indicates that there are legitimate police investigatory reasons for this surveillance.”

When Azmy argued that while the state has an interest in preventing terrorism, it could not engage in “blunderbuss” suspicionless surveillance, he was asked, “Look at Iqbal, for instance, [and] the fact that 9/11 has made us focus upon terrorism among certain extreme Muslim groups and how do you find out where they are. We have learned since then that there is a lot of recruitment of young men in mosques by imams who are giving terrorist-supporting sermons and recruiting [for] sending them to Syria, etc. How do you find out where that’s going on, well, unless you focus on mosques, you focus on Muslims? If you go to the Baptist Church, you are not going to find out anything that’s relevant, are you?”

The lawyer for the city of New York continued to insist that the spied-upon Muslims had not detailed any actual injury in their pleading, and that the city had no policy, custom, or practice of surveillance of Muslims. The injuries they alleged, he said, were in fact “self-imposed subjective fears.”

If mosque attendance was down, it was not the city’s fault, as surveillance “does not constrain, or compel, or prohibit attendance at a public mosque…. All the injuries that they allege are self-imposed injuries based upon subjective fears. The police department is not prohibiting anyone from attending a mosque.”

The three judges on the court pushed back against this line of reasoning, with one stating that “it’s not a subjective fear to know that the mosque that I want to go to is under surveillance.” Another justice chimed in, “and that I don’t go there, because of that. That’s objective… the bottom line is the mosque objectively has less attendees, has objectively less money coming in.”

Predicting the outcome of a case based solely on questions asked by the justices during oral arguments is often akin to reading tea leaves, but the ones they asked at this hearing should leave those who would like to see this case advance feeling optimistic. They repeatedly asked the lawyer from the city how could the city say decreased mosque attendance or decreased business patronage was not a harm. They also asked repeatedly if the city’s arguments were actually about the merits of the case, not arguments that the plaintiff did not allege any harm.

The judge who had earlier evoked the Paris killings asked if it was not true that many people held prejudices against Muslims, and given this fact and the facts alleged, would it not require further legal proceedings to determine whether the surveillance program was created for legitimate law-enforcement purposes or out of animus?

Another justice pointed out that the United States has long had a problem with violence against abortion providers. Most of this violence is committed by individuals of the Catholic or Baptist faiths, he noted, yet law enforcement only investigated individuals it suspected were involved with those acts, not the entire Catholic or Baptist community.

What’s Before the Third Circuit

The Third Circuit is not deciding whether the NYPD targeted Muslims based on their religion, whether such a program is constitutional, or whether the plaintiffs in fact suffered. Instead, it is deciding two much narrower legal questions. Assuming everything the plaintiffs allege is true, do they have legal standing to sue? And did their complaint state a claim upon which relief can be granted?

The district court said no on both questions. It held that the plaintiffs did not have standing to sue, because the surveillance did not injure them in any way, and even if it had, they were not caused by the NYPD’s actions, but by the AP exposing the program and releasing unredacted NYPD documents. It also held that even if they did have standing, they failed to state a claim. Its ruling stated:

…the Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001. The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself. While this surveillance Program may have had adverse effects upon the Muslim community after the Associated Press published its articles; the motive for the Program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims.

What’s Really at Stake

To a layperson, these esoteric arguments about civil procedure, marked by a rapid-fire listing of citations of rules and case names, might seem akin to the spells and incantations of a magical ritual. Yet, in spite of the very narrow legal questions being addressed by the Third Circuit, this case still deals with important issues of social justice, religious liberty, Constitutional rights, and government overreach. These issues just happened to be buried beneath a discussion of the Iqbal standards for a well-pleaded complaint.

Law does not exist in a vacuum. It operates in society at large, with all of its larger political and social questions intact. Court decisions, even ones about topics that may seem abstruse, are not just crafted to torment future generations of law students. They have real impacts on the lives of real people. In this case, that’s not only the plaintiffs, but Muslims everywhere, as well as future groups that the government may seek to persecute based on bigotry, hysteria, and fear-mongering.

What is at stake is the rights of Americans not to be spied on by the government for no other reason than their religion. CCR’s complaint, which is based on the official NYPD documents published by the AP, details a massive surveillance program.

The department kept a database of Muslims who changed their names. It employed so-called “rakers”—undercover agents who kept track of restaurants and businesses that were owned by Muslims, served Muslims, or had religious objects or pictures on the wall. It also employed “mosque crawlers,” who attended religious sermons, photographed the license plates of worshipers, and mounted cameras to surveil centers of worship 24 hours a day. It also targeted a Muslim elementary school and sent infiltrators into the Muslim Student Association at Rutgers, New Jersey’s state university.

The businesses, houses of worship, student organizations, and individuals spied on have but one thing in common—their faith. It makes perfect sense that members of a community that is under siege from the state, the media, and individuals poisoned with bigotry would decline to attend a house of worship marked as a “location of concern,” or join a student group where their every word is eagerly eavesdropped upon by agents of the state.

The NYPD’s actions had a twofold effect: They branded all Muslims as criminal suspects by the very virtue of their religion, and deterred them from leading a normal life. The issue at this stage is not even whether the NYPD should be allowed to do this, but whether Muslim Americans will have access to a court to have their case heard. If the lower court ruling is upheld, they will be barred from doing so, like the protagonist in Franz Kafka’s “Before the Law” who believed that the law should “be accessible at all times and to everyone” only to find a guard blocking him from “seeking” the “law.” The case also has important ramifications for whistleblowers and journalism. Both the NYPD and the district court blame any harm the plaintiffs suffered from the spying program on the journalists who exposed it. Given the ongoing war on whistleblowers and journalists being waged from the highest echelons of the United States government, the implications of this are quite clear.

Deflecting blame from the NYPD to the AP is meant both to immunize government bad actors from any repercussions and to deter journalism. The plaintiffs and their counsel are generally glad the AP exposed these practices; their ire is reserved for the police department that spied on them. The outcome of this case should be of grave importance to anyone concerned about the First Amendment’s guarantees of freedom of speech, religion, and association, and the Fourteenth Amendment’s guarantees of equal protection under the law.

Full Disclosure: As an undergraduate student, Chip Gibbons was an intern at the Center for Constitutional Rights as part of the Bard Globalization and International Affairs Program.